And, Google dared to run an advertisement that included said gorilla (or one that looks very, very similar) shown here:

And, alas, Scherba is so upset about the use of one of their inflatable gorillas in an ad that it's suing Google. I'm still trying to figure out how this is possibly a copyright lawsuit rather than a trademark one. Can you imagine if you had to get permission from the original manufacturer of every product you used in an advertisement? Think about any ad depicting an office scene or a kitchen scene. It would be a nightmare. Goldman further points out that the Scherba gorilla appears to have more than a passing resemblance to King Kong, and wonders if Google might try to fight back, and try to bust the overall copyright on the inflatable gorilla as bogus.

Still, the bigger question for me is what exactly does Scherba believe it's "lost" here, that it needs to sue Google? It's not as if the ad is somehow going to be a substitute for actually buying inflatable gorillas.

Reader Comments

While copyright only covers specific expressions, trademarks tend to have greater breadth and might therefore apply to a larger set of all possible forms of inflatable gorillas. Should Scherba be the only company allowed to make these gorillas? Except in cases where it would constitute copyright infringement, my view is that it shouldn't be. Trademarks should be reserved for things like logos and other identifying marks rather than the design of the products themselves (except, perhaps, in cases where the product's appearance has nothing to do with its purpose).

Re: Re:

Considering trademark vs copyright is one of the points Masnick raised, I feel perfectly justified in addressing that particular point. That you would like me to focus on a different point matters little to me even if I do indeed recognize it wasn't Masnick's main point. Luckily for me, you don't get to choose which of Masnick's points I get to address.

Re: Re: Re:

Interesting tactic: make me seem like the bad guy for pointing out that you are focusing in on a topic that, as you admit, isn't the actual point of the statement. It's such an effective tactic, in fact, that it's the basis behind ALL magic tricks; it's called misdirection. What I would or would not "like" is also NOT the topic. Please stay on topic "Mr. Senator".

Re: Re: Re: Re:

It's not like we can't have conversations on both at the same time. Is it somehow detrimental to have a thread about whether it should be a copyright or trademark lawsuit? No it isn't, since you can also have a thread right along side it talking about whether Scherba has lost anything from Google's ad.

This is why people think Trademark is IP

"I'm still trying to figure out how this is possibly a copyright lawsuit rather than a trademark one. Can you imagine if you had to get permission from the original manufacturer of every product you used in an advertisement?"

Like if you wanted to do a documentary and The Simpsons was playing on a TV in the background? Yeah, that was a trademark claim, but what's the difference (to the sueee) what the claim is based on? You only have a potentially plausible defense walking into it.

Nintendo vs MGM all over again?

"Goldman further points out that the Scherba gorilla appears to have more than a passing resemblance to King Kong, and wonders if Google might try to fight back, and try to bust the overall copyright on the inflatable gorilla as bogus. "

It's going to be funny if this one actually does go to court.

MGM sued against Nintendo back in the 80s for the exact same thing. Donkey Kong truly is an icon today in his own right.

Re: Re: Re: promo?

"If you decide to go the sue sue sue route, you pay a law firm"

and that's the problem with today's businesses. They'd rather PAY money on a shot that they MIGHT make more back, instead of use FREE advertising. This type of practice is NOT capitalistic it is imperialistic; they are NOT the same.

Re: Re: Re: Re: promo?

"This type of practice is NOT capitalistic it is imperialistic; they are NOT the same."

That's right boy. This is manifest destiny. God told us we could screw you over in the way we run our business. It's why Jesus overturned the tables of the money changers at the temple. He didn't want competition. Now be a good little red and say something commie-like so I can get the John Birch Soc... I mean, say something terrarist-like so I can get the Tea Party to protest you!

3D versus 2D

What I am wondering about is that the original Copyright that was filed was based on a 3D sculpture, which obviously Google did not use in their add since it is only in print.
From what I can gather, their only case would be if Google used some sort of pop-up 3D gorilla in the add...

Re: 3D versus 2D

"What I am wondering about is that the original Copyright that was filed was based on a 3D sculpture, which obviously Google did not use in their add since it is only in print."

Yeah, but then you get into 'derivative works.' That's the worst part of copyright as it currently stands (barring the lengths, of course.) Artists (commercial or otherwise) need to be able to riff of the giants they stand upon, as they did before them.

If you can buy these things to advertise your business, then I'm not sure exactly what the issue would be here. If they bought it and stuck it on top of their corporate offices, would Scherba still be complaining?